Church and State as Seen in the Formation of Christendom. Allies Thomas William
institution. In early law, and amid the rudiments of political thought, symptoms of this belief met us on all sides. A supernatural presidency is supposed to consecrate and keep together all the cardinal institutions of those times, the State, the Race, and the Family. Men, grouped together in the different relations which these institutions imply, are bound to celebrate periodically common rites and to offer common sacrifices; and every now and then the same duty is even more significantly recognised in the purifications and expiations which they perform, and which appear intended to deprecate punishment for involuntary or neglectful disrespect. Everybody acquainted with ordinary classical literature will remember the Sacra Gentilicia which exercised so important an influence on the early Roman law of adoption and of wills. And to this hour the Hindoo Customary Law, in which some of the most curious features of primitive society are stereotyped, makes almost all the rights of persons and all the rules of succession hinge on the due solemnisation of fixed ceremonies at the dead man’s funeral, that is, at every point where a breach occurs in the continuity of the family.”
Thus every king, as history begins, appears in a position which recalls the memory of Adam or of Noah, as the divinely appointed judge, whose office springs out of his fathership. The original consecration, which rested on the government of the race when it begun, is seen not yet to have parted from its scattered members in their tribal or national insulation.13
It is observed of Homeric Greece that “the people in its orderly arrangement of family or clans, or tribal relationships coming down from the patriarchal form of life, derives its unity from its king, whose power as little springs from the people as that of the father from his children.” Thus he possesses this power not in virtue of compact or choice, but simply from Zeus.
Οὐ μέν πως πάντες βασιλεύσομεν ἐνθάδ’ Ἀχαιοί.
οὐκ ἀγαθὸν πολυκοιρανίν· εἷς κοίρανος ἔστω,
εἷς βασιλεὺς, ᾧ δῶκε Κρόνου παῖς ἀγκυλομήτεω
σκῆπτροντ’ ἠδὲ θέμιστας, ἵνα σφίσιν ἐμβασιλέυῃ.
– Iliad, 2. 203.
This conception shows itself not merely on occasion in the poet, as perhaps in the well-known epithets, Jove-born, Jove-nurtured, friend of Jove, or in the genealogies which connect with the gods the princely races by ties of blood, but he has a distinct theory on the subject variously expressed.
ἐπεὶ οὔποθ’ ὁμοίης ἔμμορε πμῆς
σκηπτοῦχος βασιλὲυς, ᾧ τε Ζεὺς κῦδος ἔδωκε.
Agamemnon’s sceptre, the symbol of his rule over the Peloponnesus, is referred to the immediate gift of Jupiter.
The effect of this evidence, says the author just before cited, derived from comparative jurisprudence, is to establish that view of the primeval condition of the human race which is known as the “Patriarchal Theory.” This is, “that the eldest male parent – the eldest ascendant – is absolutely supreme in his household. His dominion extends to life and death, and is as unqualified over his children and their houses as over his slaves; indeed, the relations of sonship and serfdom appear to differ in little beyond the higher capacity which the child in blood possesses of becoming one day the head of a family himself. The flocks and herds of the children are the flocks and herds of the father; and the possessions of the parent, which he holds in a representative rather than a proprietary character, are equally divided at his death among his descendants in the first degree, the eldest son sometimes receiving a double share under the name of birthright, but more generally endowed with no hereditary advantage beyond an honorary precedence.” “The sum of the hints given us by legal antiquities” is that “men are first seen distributed in perfectly insulated groups, held together by obedience to the parent. Law is the parent’s word. When we go forward to the state of society in which those early legal conceptions show themselves as formed, we find that they still partake of the mystery and spontaneity which must have seemed to characterise a despotic father’s commands, but that at the same time, as they proceed from a sovereign, they presuppose a union of family groups in some wider organisation. The next question is, what is the nature of this union and the degree of intimacy which it involves? It is just here that archaic law renders us one of the greatest of its services, and fills up a gap which otherwise could only have been bridged by conjecture. It is full in all its provinces of the clearest indications that society, in primitive times, was not what it is assumed to be at present, a collection of individuals. In fact, and in the view of the men who composed it, it was an aggregation of families. The contrast may be most forcibly expressed by saying that the unit of an ancient society was the Family, of a modern society, the Individual.”
“In most of the Greek states, and in Rome, there long remained the vestiges of an ascending series of groups, out of which the State was at first constituted. The Family, House, and Tribe of the Romans may be taken as the type of them; and they are so described to us that we can scarcely help conceiving them as a system of concentric circles which have gradually expanded from the same point. The elementary group is the family, connected by common subjection to the highest male ascendant. The aggregation of Families forms the Gens or House. The aggregation of Houses makes the Tribe. The aggregation of Tribes constitutes the Commonwealth. Are we at liberty to follow these indications, and to lay down that the commonwealth is a collection of persons united by common descent from the progenitor of an original family? Of this we may at least be certain, that all ancient societies regarded themselves as having proceeded from one original stock, and even laboured under an incapacity for comprehending any reason except this for their holding together in political union. The history of political ideas begins, in fact, with the assumption that kinship in blood is the sole possible ground of community in political functions; nor is there any of those subversions of feelings, which we term emphatically revolutions, so startling and so complete as the change which is accomplished when some other principle – such as that, for instance, of local contiguity – establishes itself for the first time as the basis of common political action. It may be affirmed, then, of early commonwealths that their citizens considered all the groups in which they claimed membership to be founded on common lineage.”
“The conclusion, then, which is suggested by the evidence is, not that all early societies were formed by descent from the same ancestor, but that all of them, which had any permanence or solidity, either were so descended, or assumed that they were. An indefinite number of causes may have shattered the primitive groups; but wherever their ingredients recombined, it was on the model or principle of an association of kindred. Whatever was the fact, all thought, language, and law adjusted themselves to the assumption” (p. 131).
“On a few systems of law the family organisation of the earliest society has left a plain and broad mark in the life-long authority of the Father, or other ancestor, over the person and property of his descendants, an authority which we may conveniently call by its later Roman name of Patria Potestas. No feature of the rudimentary associations of mankind is deposed to by a greater amount of evidence than this, and yet none seems to have disappeared so generally and so rapidly from the usages of advancing communities” (p. 135).
“It may be shown, I think, that the Family, as held together by the Patria Potestas, is the nidus out of which the entire Law of Persons has germinated” (p. 152).
“When we speak of the slave as anciently included in the Family, we intend to assert nothing as to the motives of those who brought him into it or kept him there; we merely imply that the tie which bound him to his master was regarded as one of the same general character with that which united every other member of the group to its chieftain. This consequence is, in fact, carried in the general assertion already made, that the primitive ideas of mankind were unequal to comprehending any basis of the connection inter se of individuals apart from the relations of Family” (p. 164).
“The point which
Nägelsbach, Homerische Theologie, 275.